France - From a political revolution to constitutional changes: An analysis of Macron’s proposed reforms

While not necessarily revolutionary, Macron’s proposed constitutional changes would profoundly affect the judiciary and parliament. The principal institutional barrier will be the Senate, which has not yet been swept by the En marche electoral tsunami and whose consent to the proposed amendments is necessary. It is for this reason that the September 2017 Senate elections will be particularly important for the success of the reforms – writes Idris Fassassi.

‘Revolution’ was the title of the book that candidate Emmanuel Macron published at the end of 2016. In many ways, his election as French President on 14 May 2017 can indeed be considered as a political revolution. At 39, he is not only the youngest president elected under the Fifth Republic, but he is also the youngest president ever in French history. He was never elected before to any political office, and few people even knew him a few years ago, when he was appointed minister of the economy. When he launched his political movement ‘En Marche’ in September 2016, most political commentators believed his strategy to offer a third option, rejecting the right/left dichotomy, was doomed to fail. And yet, he was elected.

His victory led to a deep reconfiguration of the French political landscape to the detriment of the ‘traditional parties’. The landslide victory of his new party in the parliamentary elections in June assured him a comfortable majority within the National Assembly and even raised concerns that there would be no counter powers.

His trajectory so far has thus been one of an almost straight path to political victories. Following his recent speech before the French Congress (joint sitting of the National Assembly and the Senate) at Versailles, the nature of the constitutional changes he is advocating for can be assessed. Although he spoke of a ‘revolution that needs to be accomplished’, the proposals concerning the reforms of the judicial system, parliament and the voting system are more modest. In fact, many of them draw on preexisting proposals. Given his majority in the National Assembly, the major unknown lies in the attitude of the Senate, dominated by the right, and whose consent to the constitutional amendments is necessary. The coming months will thus put to the test the capacity of the new President to convert the political revolution he has been claiming to embody into constitutional changes which, although not revolutionary, would deeply affect the French political and constitutional structure.

Presidents and constitutional reforms

It is very common for French presidents to advocate for constitutional changes that would later on constitute part of their legacy. Beyond the actual constitutional changes put into place, there is therefore a strong symbolic dimension at play. Presidents Valery Giscard d’Estaing (1974-1981), Francois Mitterrand (1981-1995), Jacques Chirac (1995-2007) and Nicolas Sarkozy (2007-2012) have indeed proposed and managed to pass significant constitutional reforms, concerning the institutions, societal issues or the impact of the European construction process, to which they are now closely associated.

However, if history is of any help, one should be aware of the difficulties of the latest attempts to modify the Constitution. For instance, the important revision of 2008, under President Nicolas Sarkozy, which, among others, established a new procedure that allows the Conseil Constitutionnel (constitutional court) to review a law after its entry into force, and strengthened (or intended to strengthen) the role of parliament, was adopted by a mere two vote margin. And one remembers that President François Hollande proposed half a dozen of constitutional amendments, all of which were unsuccessful. The most famous example is his proposal concerning the constitutionalization of the state of emergency and the revocation of nationality of individuals convicted of terrorism, which turned out to be a bitter political defeat. In fact, the failures of Hollande’s constitutional proposals are, in a certain way, representative of the flaws often associated with his term, in particular the immobility that Macron himself condemned.

The ability to pass constitutional reforms is therefore particularly revealing and has a huge symbolic dimension for presidents. The stakes are particularly high for Macron who precisely campaigned on the idea of revolution and profound institutional changes.

The symbolic announcement of the reforms

During the presidential campaign, Macron mentioned some of the constitutional reforms he intended to push for, in particular the reform of legislative procedure, and after his election, members of the government outlined some others. However, it is during his famous speech at Versailles before Congress, on 3 July, that Macron unveiled the scope and nature of his proposals. It is worth noting the choice made by Emmanuel Macron to convene the Congress precisely because of its symbolic tone. It is only the third time that a President used the constitutional authority to express himself before Congress. For historical reasons dating back to the end of the 19th century, presidents were not allowed to speak directly before MPs before the 2008 constitutional reforms. Since then, Nicolas Sarkozy in 2009, and Francois Hollande following the terrorist attacks in 2015, had spoken before Congress.

Macron’s use of this procedure is thus in line with his self-described ‘Jupiterian’ conception of the presidency, which has been both criticized by some as hypertrophied and lauded by others as restoration of its dignity. Macron even affirmed that he intends to use this procedure every year, for what may become a French version of the U.S. State of the Union address.

The key theme of his speech was undoubtedly the trust that he intends to restore both in institutions and in society itself. Macron also stressed the imperatives of efficiency, representativeness and responsibility, around which his proposed constitutional reforms are articulated.

The scope of the reforms

The reforms announced during the speech before Congress and those mentioned earlier can be grouped around three themes: the judicial system, parliament, and the Economic, Social and Environmental Council.

Proposed reforms to the judiciary

Three proposals deal with the judicial system, understood in a broad sense. The first one would abolish the Court of Justice of the Republic (CJR), which has long been criticized. Under the Constitution, members of the government are criminally liable for acts performed in the exercise of their official duties and are judged by the CJR. This special court was established in 1993, in the context of the contaminated blood scandal in which several members of the government were implicated. It is composed of 15 judges, 12 MPs and 3 judges from the Court of Cassation. Anyone claiming to be a victim of a serious crime or other major offence committed by a member of the government in the exercise of her/his official duties may lodge a complaint with a petitions committee, which will then determine whether the case should be dismissed or forwarded to a prosecutor for referral to the CJR.

This system is hybrid, half political and half judicial, and this unstable compromise is probably the source of its flaws. Its weaknesses were revealed in several cases in which the Court intervened, in particular the recent trial of former economy minister Christine Lagarde. Because the Court’s jurisdiction is limited to members of the government, it creates a problematic fragmentation of judicial proceedings, with for instance the coauthors or accomplices being tried by regular courts while the minister or former minister is judged by the CJR. And in a 2010 case, former minister Charles Pasqua was acquitted while other people involved were convicted in regular courts. Furthermore, the coauthors and accomplices are not obliged to testify under oath before the CJR.

If the CJR has been criticized for its leniency, its composition raises the strongest concerns. What justifies the presence of MPs on this court? And why establish a special court at all? Should not the members of the government be judged by regular courts? This contention was expressly invoked by Macron during his speech, when he noted that ‘our citizens do not understand why the members of the government should be judged by a special court’. This proposal is not new. In 2013, following the conclusions formulated by a committee, President Francois Hollande had indeed, unsuccessfully, proposed the abolition of the CJR.

The second reform announced by Macron deals with the independence of ‘le parquet’, that is public prosecutors. Prosecutors are placed under the hierarchical authority of the minister of justice. Because they are considered in France to be part of the judiciary, their relationship with the executive branch is problematic. The European Court of Human Rights has indeed recently underlined that they cannot be considered as ‘judges or other officers authorized by law to exercise judicial power’. The reform outlined by Macron aims at ensuring the full independence of the judiciary, by separating the executive and the judiciary. He expressly affirmed that prosecutors should be appointed with the assent of the Conseil Supérieur de la Magistrature, an entity that ensures judicial independence, which under the current constitutional framework only gives an opinion on the proposed appointments. Here too, Macron’s proposal is not new. Francois Hollande had unsuccessfully proposed a similar constitutional reform in 2013.

The third reform deals with the Conseil Constitutionnel. It was not mentioned in Macron’s speech at Versailles but the former minister of justice announced it on 1 June among a package of other reforms. It aims at correcting a French exception, which is clearly an anomaly among contemporary constitutional courts. Under article 56 of the French constitution, former presidents become, at the end of their term, members for life of the Conseil. The raison d’être of this provision lies in the desire, in 1958, to assure President Coty, de Gaulle’s predecessor, an honorable way out. It is extremely problematic and hurts the legitimacy of the Conseil. It raises suspicion and casts a cloud of political interference on an entity whose legitimacy is already frequently questioned. This anomaly is even more flagrant since the establishment of the procedure allowing the Conseil to review laws after their entry into force. It is therefore now widely admitted that article 56 should be amended. Indeed, in 2013, suppressing the provision was part of a constitutional revision advocated for by Hollande, which was, however, put aside due to lack of political support.

It thus appears that there is nothing profoundly new or radical with the different reforms concerning the judicial system proposed by Macron; each of them was proposed by Francois Hollande and there is wide consensus among scholars and jurists that these measures would enhance the trust in the system, even though they should likely be followed by further reforms.

In contrast, his proposals concerning the reform of parliament are more singular.

Proposed reforms to parliament

Macron has outlined three important reforms concerning the legislature. The first one would reduce the number of MPs by one third. This reform was already mentioned in his platform unveiled in March 2017. Currently, the National Assembly has 577 and the Senate 348 members. Both these numbers constitute the ceiling established in the Constitution. Macron argued in his speech in Versailles that the reform was ‘necessary’ and that ‘a reduced but better equipped Parliament’, would be ‘a more efficient Parliament’.

Unsurprisingly, this proposal was condemned by some MPs. One senator argued, for instance, that ‘fewer MPs amounts to less democracy and pluralism’. Others were more favorable, on the condition that parliament would be indeed ‘better equipped’ and that its budget would be increased.

A comparative analysis reveals that France is not an outlier in the area of parliamentarian to population ratio. Although France has more MPs per habitant than the United States or Germany, these are federal states, which also have state legislatures. With 925 MPs for 66 million inhabitants, France has indeed fewer MPs per habitant than the UK (1450 MPs for 64 million inhabitants). In any event, such a reform would imply a drastic rewriting of the very sensitive electoral map.

The second proposal concerns legislative procedure. Macron affirmed that there should be fewer laws and parliament should not yield to the cult of speed: ‘Time is needed to write laws’. However, he also emphasized that the rhythm of the lawmaking process should respond to societal needs and urged for a more simplified legislative procedure. He even affirmed that MPs should be able to adopt laws in legislative committees and not necessarily in plenary sessions. This reform is clearly dictated by Macron’s desire for efficiency. In many ways, this is unsurprising for a man whose career seems defined by straight paths towards his goals. But Macron himself recognized the danger in the quest for speed in lawmaking. This measure risks reinforcing a notable trend in French institutional life, which is to transform what was conceived as an exception into a principle. Urgency, or what is now called the ‘expedited legislative procedure’ under the Constitution, is in fact already more and more frequently used, even where there is little objective justification for the procedure, apart from the desire to do so.

But Macron’s proposal would go further than that. Allowing laws to be adopted in committees would shortcut the role of the plenary assembly altogether. Therefore, MPs who are not members of the committee would not even be able to discuss, amend or vote on the law. Such a measure might be valuable for technical texts, with low political salience. In any event, committee proceedings should be fully public, which is not the case currently. The risk is that this exceptional measure would be used beyond technical texts and thus lead to a problematic shortcut around parliament. As the late constitutional lawyer, Guy Carcassone, famously observed, ‘to make good laws, nothing better than a Parliament has been invented so far’.

The third proposal concerns the voting system. Like many of his predecessors, Macron affirmed that the election process for MPs should make room for a ‘dose of proportional voting’, so that ‘all the different sensibilities be justly represented in Parliament’. While crucial, such a change does not require a constitutional amendment and could be done with an ordinary law.

Except for the 1986 elections, proportional voting has never been used to elect members of the National Assembly under the Fifth Republic. The simple majority two-ballot system has been used and has produced clear majorities and ensured a stability that was sought after by the drafters of the Constitution. This voting system has long been criticized because it excludes viewpoints which are significant in the electorate. In contrast, a significant number of senators are already elected through proportional voting.

One should note that Macron remained fairly vague on the details of the introduction of proportional voting for member of the National Assembly. Because this reform has often been announced, only to be discarded and abandoned later on, one should be cautious here. In addition, as the current system has provided En marche with a solid and reliable majority in the National Assembly, President Macron might ultimately be more reluctant than candidate Macron to push ardently for this reform.

The fourth proposal suggested by Macron was also justified by the need to ensure greater representativeness. The President affirmed that MPs should serve for a limited number of terms, in order to ensure a renewal of the political class. This measure would indeed address a longstanding problem of French political life.

The Economic, Social and Environmental Council (ESEC)

Macron announced a deep restructuring of the ESEC. This consultative assembly is meant to represent the civil society. It gives advisory opinions on draft legislation and also receives petitions submitted by individuals.

Macron called for a reduction of a third of its members. This is coherent in so far as he also proposed the reduction of a third of all MPs. Beyond the mere number of members, the President intends to change the overall structure of the Council. He describes the new Council in his Versailles speech as ‘the Chamber of the future’, ‘the forum of our Republic’, ‘a place where all sensibilities should be expressed’. It is widely acknowledged that the ESEC needs to be reformed, and Macron’s proposals are therefore to be welcomed, even though the concrete details have yet to be announced.

The future of the reforms

Macron announced in his speech that he expects the minister of justice and the presidents of the National Assembly and the Senate to send him proposals in the fall on how to implement these reforms, with a view that the latter should be accomplished within a year from now.

Because Macron’s reforms include proposals that were unsuccessfully pushed for by his predecessor, the pressing question remains whether Macron will be able to ensure that these proposals become law. One needs here to look into the constitutional revision process, which can be broken into three phases.

The first phase is the initiative. An amendment can be proposed either by the president, on the recommendation of the prime minister, or by MPs. So far, all successful constitutional reform proposals have been initiated by the president. The provision implies that there should be an agreement between the president and the prime minister concerning the revision, which is rarely a difficulty or an obstacle for the president.

The second phase is the vote of the proposal by the National Assembly and the Senate in the same terms. This provision thus confers a veto power onto each assembly. Many constitutional reform proposals have failed recently because of the refusal of the Senate.

The third phase is what could be called a ratification. When the revision comes from the initiative of MPs, it has to be, after the second phase, adopted by referendum. When the revision is initiated by the president, the latter can chose either to submit the text to a referendum, or to submit it to Congress for approval by 3/5 of the MPs. Except for the 2000 revision, adopted through a referendum, presidents have always chosen the path of the Congress. One can easily understand why. Referenda, especially constitutional referenda, are risky political gambits. ‘Vox populi, vox dei’ (‘the voice of the people is the voice of God’), and in case of failures, there would be strong pressure on the president to resign (which is actually what de Gaulle did in 1969 after his defeat in a referendum concerning the Senate).

It is clear that the major difficulty for Macron lies in the attitude of the Senate. This conservative and insulated institution is the only political entity which has not yet been impacted by the En marche electoral tsunami. In other words, macronism, often described as a wave of renewal, has not reached the Senate, which is famous for its resistance to change. Here lies the biggest obstacle to Macron’s constitutional proposals, in particular those concerning parliament. The Senate is now dominated by the right and numerous senators have already voiced their concern about his proposal to reduce … the number of senators.

Macron has mentioned in his speech that he was ready if necessary to use a referendum to pass the reforms. The first way to understand this statement is that he is ready to use the referendum in the third phase of the constitutional revision process. But the problem here is that he would nonetheless need the Senate’s assent in the second phase of the revision. One can therefore interpret this as a threat to use a referendum to fully circumvent the opposition of the Senate, as de Gaulle did in 1962 and tried to do in 1969 (using presidential powers to organize a referendum on certain government bill (Article 11) to modify the Constitution). Although that would probably be a typical illustration of a ‘jupiterian President’, it is unlikely that Macron would resort to a procedure which is widely considered to be flagrantly unconstitutional (Article 11 referenda can be used for ordinary laws, not for constitutional amendments).

The key of the success of Macron’s constitutional proposals therefore probably lies in making political gains in the Senate. Timing might be on his side; in September 2017, half of the Senate seats will be up for grabs.

Idris Fassassi is an associate professor of public law at University Panthéon-Assas (Paris II).

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